MUKAMBA & COMPANY ADVOCATES

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The distance that makes your land vulnerable is exactly what a properly structured trust neutralises

By Eugene Mukamba, Advocate

You send money home for the land. You send money home for the caretaker relative watching over it. And then, one visit home, you discover a portion of it has been quietly sold, subdivided, or occupied — and the relative you trusted either enabled it or simply could not stop it.

The Informal Arrangement Most Diaspora Families Rely On

The typical set-up is a title held in the name of a parent, sibling, or trusted relative back home, with an unwritten understanding that they are simply looking after it. That arrangement has no legal teeth.

The person holding title has no formal, enforceable duty to you — nothing stops them, deliberately or under pressure from other relatives, from dealing with the land as though it were genuinely theirs.

What a Trust Changes

Placing the land into a properly incorporated family trust replaces that informal understanding with a legally enforceable one. The land is no longer registered in any individual’s personal name — it belongs to the trust.

The person managing it day to day does so as a trustee, bound by the Trustee Act’s fiduciary duties: to act in the beneficiaries’ interest, to avoid self-dealing, and to account for their management.

If they fail in that duty, they can be held personally liable and removed — something no informal family understanding can achieve.

What the Trust Deed Should Specifically Address for Diaspora-Owned Land

• Clear authority for the trustee to act on routine matters (paying land rates, dealing with encroachment) without needing your sign-off for every decision.
• A defined reporting obligation — how often the trustee must account to you, and in what form.
• Explicit restrictions on the trustee’s power to sell, lease, or subdivide without your consent as settlor or as a named beneficiary.
• A succession plan for the trusteeship itself, so the arrangement does not collapse if your caretaker relative becomes unwell or dies.

It Also Solves the Succession Problem You Are Not Thinking About Yet

Land held personally in your name, or in a relative’s name on your behalf, still has to pass through the Kenyan succession process on death — a process that is considerably harder to manage from abroad, and that exposes the land to the very succession disputes trusts are designed to prevent.

Land already held in a properly funded trust avoids that exposure, protecting it not just from opportunistic relatives today, but from a contested succession battle later.